M&S’s Break Clause Dispute: wider contract implications

????????????????????????????????????????????????????????????????????????????????

See my blog on the Supreme Court’s recent decision:

http://www.luptonfawcett.com/blog/mandss-break-clause-dispute-broader-contract-implications/

  • Contract interpretation
  • Implied terms
  • Necessity
  • Break clauses

This updates last year’s wordpress piece:

https://jpaulsykes.com/2015/01/06/supreme-court-gives-ms-permission-to-appeal/

 

scales-145464_150pixaby

Advertisements

Santa’s Lawyer: World Exclusive

Unauthorised Interview!christmas-1015324_1280

 

 CAUTION:  Broad minded, consenting adult’s supervision required:
Spoiler Alert Especially “next to last ” Q&As

In the run-up to Christmas, everyone knows Father Christmas and his elves are extra busy, but we managed to track down one of the unsung heroes of Santa’s Kingdom

*Father Christmas’s Lawyer*

We asked him, or her (because of the extreme sensitivity of the position, we were asked to keep the lawyer’s identity confidential!) to fill us in on a few secrets.

anonymous-376540_1280.jpg

Here is the exclusive and previously unseen, unheard and unheralded low down on crucial legal issues that Father Christmas currently faces!

santa-claus-1047408_960_720[1]

THE TRANSCRIPT

Q1: In times of increasing regulation and potential litigation, how do you defend Father Christmas – He faces accusations of setting a bad example, putting his life and the lives of others at risk through breaches of health and safety laws?

A1: Well, thank you for asking me and showing such an interest. This is a big thrill for me, I love my work, being Father Christmas’s lawyer, and answering all the questions that everyone has around the world at this special time.

Q2: Landing a sleigh on the roofs of houses and climbing down chimneys to deliver sack-loads of questionable gifts – is that a good example for Santa Claus to set for children everywhere?

A2: But it’s not just at Christmas time – this is a 365 day a year operation in the law offices at Santa’s Grotto back home. Of course we have 24/7 remote access for Father Christmas whenever he might need any legal advice or counsel.  But the thing is, Father Christmas never really needs any advice because, well he’s omnipotent. And omniscient. He’s all knowing. He knows everything – I’m not saying he’s a “know all”, he’s just great to work for!

Q3: You haven’t really answered any of my questions – these are serious issues and Father Christmas has to come clean.

A3: I’m sorry, it really is appreciated and what a great first question. It’s certainly a pleasure to be here, and may I say a big “Happy Christmas!” to you and all your subscribers!

Q4: There is a growing charge sheet: Santa Claus is accused of promoting drunk driving, speeding, breach of the Highway Code, reckless endangerment by flying livestock without a permit and climbing down chimneys.

chocolate-santa-claus-490825_1920

A4: I want to pick you up on some conflation in your questions. You are talking about Father Christmas and Santa Cluas interchangeably, as though they were one and the same, and that there is only one of them. And that he (or she) exists.  So am I in fact – that’s great! Now that might be your perception, and the presumption behind your question. I’m happy to go along with that. But no warranty is intended or to be implied, you must rely on your own searches or enquiries. No liability is accepted, and the usual exceptions and limitations apply (see rider).

 

Q5: Are you saying that there is a turf war going on – the public have a right to know?

A5: Well I appreciate the insight, and I know how much you love a scoop! Having said that, I have to be mindful not to disclose any details of any historic confidential settlement of any joint venture, or ventures, existing or not, known or unknown, all names rights, territorial and exclusivity protocols between the various jurisdictions and entities. I hope you understand.

nicholas-1007764_1280

Q6: He flagrantly refuses to wear a seatbelt or crash helmet!

A6: But as you well know, Father Christmas has magical powers. He’s been doing this for centuries. He’s very expert, and he does what he does – you know?

Q7:  OK, I can see you aren’t going to be drawn, but what about some specifics? What about, say the Work at Height Regulations 2005? Isn’t Father Christmas in contempt of Parliament and of RoSPA?

A7: I’m so glad you asked me that. You know, it isn’t reasonably practical for him to avoid working at heights. The defence of necessity is an obvious response, but Santa adopts best practice and a safe system of work. This is regularly checked, updated and monitored. The sleigh has protective rails to prevent a fall. A descent mitigation system operates so that in the unlikely event Father Christmas has an accident, he is protected. Plus, he can fly.

Q8: What about occupier’s liability – isn’t it an imposition that people visited by Father Christmas, maybe on an unsolicited basis have obligations thrust on them without consent? Shouldn’t they be worried that Father Christmas could sue them?

santa-31665_1280

 

A8: Householders have duties to all visitors, to take reasonable steps to make sure that the area is safe and in particular that Santa and the reindeer are not injured, or the sleigh damaged. Your roof needs to be in good repair and the chimney mustn’t pose a risk of injury. However, if you don’t have a roof or chimney, or the roof is in disrepair, or your chimney is blocked, or ablaze, don’t worry; this will all have been subject to rigorous hazard analysis ahead of time. Father Christmas knows all about your home and its environs. This is just basic for him. No, that’s not creepy.

Q9: But a question all children want answering – how does Father Christmas get in?

A9: Father Christmas can get past even the most challenging obstacles. Obviously I am not at liberty to disclose how exactly, but Father Christmas makes sure that all the good little boys and girls get their presents. Some grown-ups just stay awake to let him in on Christmas Eve. Others assume he gets in through a door, a window or even an air vent.  As a last resort Father Christmas uses his magic key, but I guess you knew that already?

Q10: What if Father Christmas was breathalysed? Anecdotal evidence suggests he takes an alcoholic drink at almost every other house – doesn’t this make him unsafe on the roads and in the air. Couldn’t he be arrested and banned?christmas-1070830_1280A10: We are well aware of our duties and responsibilities, for example for every pilot the limit is 20 milligrams per 100 millilitres of blood.  In England and Wales for drivers it’s s 80 milligrammes of alcohol per 100 millilitres of blood, 35 microgrammes per 100 millilitres of breath or 107 milligrammes per 100 millilitres of urine.

Q11; You seem to be over- familiar with that, which isn’t reassuring. Does Father Christmas have an on-board breathalyser?

A11: The average human could be over the limit after a wee dram of whisky, tot of rum or snifter of port. Even too much brandy butter on a mince pie is risky for pilots. But it should go without saying that Father Christmas is an exception.

Q12: Are you saying he is a substance abuser?

A12: I can’t disclose personal medical details, but your question makes a lot of assumptions; who’s to say that Father Christmas’s blood stream is the same as ordinary mortals? At this time of year it could be running on 100% undiluted sweet sherry – I couldn’t possibly comment. But you just have to ponder the prejudices and assumptions underlying your questions to reveal their underlying fallacy.

christmas-1015324_1280.jpg

Remember everyone, Father Christmas supports responsible drinking for all the good people out there, fundamentally though, he embodies the “Spirit of Christmas.”

Q13: Aren’t you just an apologist for an international criminal racket? Santa flouts Regulations against importing merchandise or animals without permits.  Shouldn’t Santa and his reindeer be arrested, kept in quarantine or even destroyed? Santa’s sacks of toys would also be confiscated as he circumvents customs and imports them illegally, and let’s not get started about the serial Data Protection offences.

A13: I think you are over reacting. Don’t forget, Father Christmas is a supernatural being, transcending cultural, theistic, legal and international norms.  His actual whereabouts (intended plural) at any given time are an undisclosed secret. Although there are various authorised outposts including in Lap Land and the North Pole, Santa’s Kingdom is protected by International Reciprocal Treaties.

 

2014-05-Life-of-Pix-free-stock-photo-quebec-snow-nature

Q14: Isn’t it time that an International Arrest Warrant was issued against the fugitive, Father Christmas?

A14: Father Christmas has never been arrested or tried. He would have to be arraigned before a court of his peers. I doubt Jack Frost, Mother Nature, Neptune, the East Wind and the Green Man are ever going to agree to give these defamatory accusations any legitimacy. On a procedural basis, however, the unique off shore nature of Santa’s business centres provides no address for legal service of any proceedings. No applications for alternative service against Santa have ever been upheld. In any event, Santa obviously has a magic hour glass so that any proceedings would effectively be, or be construed as being out of time.

Q15: It has been rumoured that Rudolph is taking legal advice on a number of claims – exploitation, equitable accounting; breach of copyright, unauthorised image use and failure to pay Royalties on merchandising. How do you respond?

A15: I speak entirely hypothetically, because I am not going to breach client confidentiality or privilege. Firstly, I can neither confirm nor deny that Rudolph is a red nosed reindeer, known to my client. Secondly, we rely on universal legal principles, recently reaffirmed in the UK, that an animal has no legal personality, and cannot bring any action.

Q 16: Really, isn’t that anti-equality?

dogs-on-a-leash-1220224-sfree images

A 16: Absolutely not. Mr Justice Snowden in November this year in the Chancery Division of the High Court dismissed a claim for damages brought by two dogs. Amongst other things, this was on the basis that CPR Part 2.3 (1) defines “Claimant” as a person who makes a claim, and a dog is not a person.  How could a dog, or a reindeer give instructions to bring any legal proceedings, let alone sign a certificate of truth, give an undertaking, pay court fees, give security for costs, or comply with an order of the court?

architecture-2671_640

Q17: But what if Father Christmas was sued, say by the Elves for breach of Working Time Directives?

A17: The elves would never sue Santa, he is their spiritual Father, and they love him, even when he’s feeling grumpy. All insinuations are denied and Santa’s Workshop adopts a progressive full participation, grant aided Share Ownership scheme and cooperative partnering philosophy. So the Elves own the business.

baby-21971_1280

Q18: What about Father Christmas’s personal liability for all of the risks that he runs?

A18: There are unresolved questions, which I’m not going to comment on here regarding the existence or otherwise of any relevant Declarations of Trust, Corporate Constitutions and business matrix. Whether Father Christmas is a sole trader, a partner (whether with Mrs Claus or otherwise as an LLP Member), an employee, director, shadow director from 26 May 2015 under the Small Business, Enterprise and Employment Act 2015 so that the general duties of directors under sections 170-177 of the Companies Act 2006 apply, or a Registered or Unregistered charity, Unincorporated Charitable Association, Community Interest Company, Club, Credit  Union  or unregulated spiritual being is best left for others to ponder. But if you sue him, I can assure you the outcome is assured – your ass is grass!

_DSC8637

Q19: There are unconfirmed reports of an Anti-Trust, Monopoly and Cartel busting consortium being launched with backing from The Grinch and Scrooge Enterprises. They are petitioning in the United States for interventions under the Racketeer Influenced & Corrupt Organizations Act (RICO).  What’s your reaction?

A19: Any jurisdiction, liability, locus standi, causation, quantum and limitation would be denied. Preliminary issues include whether any claim was against Father Christmas or Santa Claus, or Santa’s Grotto. Fundamental issues of fact and law, not to say theology, natural laws and physics would need to be explored and proved. You shouldn’t overlook the fact that if he exists, he will undoubtedly have diplomatic immunity, as will all his manifestations, subsidiaries, servants, agents and employees. All are Envoys of the Winter Wonderland and Santa’s Grotto which are non-justiciable and impervious to any such moves by the misguided entities you mention.

Q20: What if Wizzard  or Slade, and Mud and a vast number of other British groups from the 70’s and other less eclectic decades (from a popular music perspective) all brought a Class Action for passing off against Father Christmas and an account of profits? Might he go bankrupt?

??????????????????????????????????????????????????????????????????????????????

A20: I think it more likely that he has a theoretical claim against them. Moreover, even if there was any claim, it would be very difficult to empanel a jury or identify an impartial Judge who wouldn’t recuse themselves for either being on or off the Nice List.

Q21: How do you respond to critics like Dr Nathan Grills of Australia’s Monash University who says Santa’s “rotund sedentary image” has had the effect of making “obesity synonymous with cheerfulness and joviality” around the world?

boy-179376_1280

 

A21: Father Christmas is certainly a role model for his unfailing generosity, devotion to duty, get up and go and can do attitude. It is worth noting that the European Court of Justice has this December again ruled that obesity can be classed as a disability, so employers and individuals alike are best advised to avoid discriminatory behaviour.

Q22: Father Christmas has a reputation for being popular with the ladies; but what when it goes further? Witnesses report seeing Mommy Kissing Santa Claus, under the mistletoe, tickling Santa under his beard. Won’t this be traumatic for the children – would Daddy be able to sue Santa Claus for intermeddling in marital harmony?

 

adult-15585_1280 (1)

A23: Well this is a horny old chestnut isn’t it? It’s true that Santa does have to have his wits about him, if he is to avoid being propositioned by the over-amorous. He has 20 million households to service in the UK alone. Santa has regular situational and observational training a la Jason Bourne and the Sioux, equipping him to handle anything that might arise, whether he’s being asked to fill his boots or empty his bulging sack, or otherwise importuned when about his lawful business.

Q24: There must be a putative claim to come out of the closet?

A24: It is highly doubtful that there could be any legal claim, even in theory: most jurisdictions have eliminated the tort of “alienation of affection” as a matter of public policy, either by statute or court opinion. Even where the tort survives in theory, “eulogistic commendation of the res vendita”, has only ever made Father Christmas more committed to ensuring satisfaction guaranteed.

Q25: What do you say to people who say Santa Claus doesn’t exist – how do you prove he does?

A25: There have been few legal cases on the subject, not surprisingly, because of the difficulty for example of conflict of laws, cross border and jurisdictional issues, identification evidence and other jurisprudential matters. How are you going to serve Santa Clause with any proceedings, or prove service, not least if you assert his non-existence?

Q 25: Your having a giraffe, right?

A25: Nevertheless – No. There have been some interesting cases. One that was before my time and which I call to your attention, which I don’t necessarily rely on as setting a precedent or having any basis in reality, but which you may nevertheless think might be of at least persuasive authority:  Judge Michael Musmanno of Allegheny County, Court of Quarter Sessions of Pennsylvania in 1936 reportedly opined 

In re: The Legality and Authenticity of Santa Claus

“….Santa Claus is a reality recognizable by the law and he will be protected in this court against all aspersions and insinuations to the contrary…. Santa Claus is the symbol of amiable kindness; he is the token of smiling charity he is the badge of all that is cheerfully benevolent in the make-up of man. The best judge is he who walks with Santa Claus.

On weighing all the evidence in the case, which was made up of the testimony of the season, the attestations of the human heart, and the exhibits presented by Mother Nature, the Judge declared:

“… after listening to the rosy-cheeked laughter of the December winds laden with the glittering snow, each flake a pattern of beauty and harmony, we conclude and find that Santa Claus is a reality. We find further that without him life would be dull and cheerless, and that with him the heart is merry and the spirit gay, as life should be….” 

Q26: So you quoted that from memory, but there must be dissenting opinions!?

angel-564351_1280 (1)

A26: Yes we learn it by heart at Santa Law School. Who could disagree with that judgement?  By the way, before answering, and the last thing I want to do is to influence your reporting in any way: you are aware that I am Santa’s

 Appointed Representative Solicitor Extraodinaire

I enjoy his full authority in this and all jurisdictions. Accordingly he relies on me to make preliminary recommendations on everyone, boys and girls, and grown ups  viz a viz their “Yuletide Expectation Present Status” (YEPS). This is colloquially known as the Good List / Naughty List.

Father Christmas knows if you have been bad or good!

Ho Ho Ho! Merry Christmas to One and ALL!nicholas-206279_1280

  • Under Licence
  • patents pending

(As revealed in conversation)

  scales-145464_150pixaby